Chapter 8: Renewing the Commitment to Legal Aid

In our meetings across the province, we were often reminded of the enviable reputation of the Ontario legal aid system both at home and abroad. Those who have been involved in legal aid over the years as service providers, supervisors, administrators, and governors of the system are justifiably proud of that reputation and of the achievements which underlie it. However, the advent of funding restraints, and most particularly the imposition of a funding cap on a system which was designed to function without one, has had a traumatic effect. This has given rise to a need for a revised and reinvigorated approach to the delivery of legal aid services in the province. Over the years, a set of understandings, both explicit and implicit, had developed between the legal aid system and the government of the province. Those understandings may have served us well in the context of a legal aid system which enjoyed a history of more or less continuous expansion in terms of funding provided and the range of services it could offer to the public. These understandings have not served as well, we believe, in a period of fiscal constraint. What is now needed, in our view, is a new set of understandings, a new set of reciprocal commitments between the legal aid system and the government of the province.

We emphasize that our vision for the legal aid system rests on an exchange of commitments because we believe that a new beginning for legal aid can be made only if commitments are forthcoming from both sides of the legal aid equation in Ontario. In this chapter, we attempt to identify elements of an exchange of this kind which will, we dare to hope, enable the Ontario legal aid system to regain its pre-eminence in this field by providing a broad range of efficient and high-quality legal aid services to the people of Ontario.

A SHARED VIEW OF THE FUNDAMENTAL PURPOSE OF LEGAL AID

ACCESS TO JUSTICE

  • The fundamental objective of the legal aid system is to promote equal access to justice by identifying and meeting the diverse legal needs of qualifying individuals and communities.

Successful collaboration between the legal aid system and government requires a shared vision of the goals and mandate of the legal aid system. The mandate of the system has, from its beginning, been to promote access to justice across the province. This mandate flows from the desire of Ontarians to live in a province which promotes fairness and justice, as is reflected in the commitments of successive provincial governments which have invested significant resources in achieving, or attempting to achieve, this important objective.

We favour maintaining this wide mandate for a number of reasons. We have earlier attempted to portray the broad range and compelling nature of the needs for legal aid services that exist in Ontario. We have attempted to demonstrate that significant injustice can occur across a broad range of legal subjects if legal assistance is not available. We believe that is important, therefore, not to restrict the mandate of the legal aid system to particular fields of law.

If this is not to be the mandate of the system, however, the new and narrower mandate for the system must be clearly crafted and understood both by the government, which should bear the political responsibility for any narrowing of the mandate of legal aid, and by the legal aid system, which can function properly only if it has a clear understanding of that mandate.

COMMITMENTS OF THE LEGAL AID SYSTEM

The following commitments of the legal aid system will, we believe, both enhance the capacity of the system to fulfil its mandate and, at the same time, strengthen the confidence of both the government and the public at large in the system itself.

A NEEDS-BASED SYSTEM

  • The legal aid system shall identify and assess the needs of those who are unable to afford legal services and seek to meet those needs appropriately.

The design a legal aid system, in our view, should be based an ongoing assessment of the actual legal needs of those whom the system is designed to serve. Although this might appear to be an uncontroversial proposition, we believe that the legal aid system in Ontario needs to enhance its capacity to identify and quantify the needs for service delivery as it evolves into a system which can work within a fixed annual budget. Although the legal aid system has engaged in priority-setting activity in various ways in the past, the need for priority-setting in a system with capped funding is intensified. Strategic planning for the system will require an understanding of the changing nature of these needs, both locally and system-wide. The legal aid system should be driven, in our view, by an ongoing monitoring and assessment of the needs of Ontarians for legal aid services.

QUALITY OF SERVICE

  • The legal aid system shall be responsible for ensuring that the legal services it provides are of consistently high-quality across the province.

Quality assurance is an important issue for any service provider, and no less so in the context of the delivery of legal aid services. Indeed, in chapter 7 of this report, we argued the case for a more proactive approach to quality-assurance issues in the legal aid context than has been followed in the past. Such quality-control measures as have been adopted by the profession more generally have, as we have argued, severe limitations in the legal aid context. Accordingly, we believe that this is an area in which a more vigorous approach should be taken by the legal aid system.

Quality-control issues are important for another reason. As the ongoing debate with respect to the virtues of various models for providing legal aid services continues, it is increasingly apparent that not enough is known about the relative quality of services provided by different delivery models. A more sustained approach to setting performance standards and monitoring performance on an ongoing basis will be of assistance, therefore, not only with respect to quality-assurance, but with respect to choice of delivery model.

PRIORITY-SETTING

  • The legal aid system shall set priorities for service delivery in order to target available resources to the most appropriate cases.

Although it has always been necessary for the legal aid system to engage in priority-setting activities of various kinds, priority-setting assumes a new level of importance in a legal aid system with capped funding. We have suggested above that a new model for priority-setting should blend the best features of the priority-setting experience of the clinic system with what has been learned from the priority-setting experience of the certificate side of the system in recent years. More particularly, we have suggested that a new model for priority-setting within the legal aid system should be based on consultation, environmental scanning of needs, a blending of system-wide and local strategic planning for the system, and the integration of a range of service-delivery models into priority-setting exercises. We have suggested that the range of considerations taken into account in setting priorities needs to be less dominated by a focus on the liberty of the subject and to be more inclusive of the variety of other interests that create serious needs for legal services. We have suggested that the system should enhance its capacity to determine its priorities strategically in order to achieve the greatest impact possible with available resources. Finally, we have noted that priority-setting must be subject to revision in the light of experience and the changing social and legal environment.

COST-EFFECTIVENESS AND ACCOUNTABILITY

  • The legal aid system shall be responsible for assuring the public that legal services are being provided in a cost-effective manner and that effective use is being made of modern information - technology and management techniques.

Although the legal aid system has entered into an era of fiscal restraint, it is nonetheless true that significant amounts of public money continue to be devoted to the provision of legal aid services in Ontario. At the same time, governments in Ontario and elsewhere have developed a heightened sensitivity to the need for effective monitoring of the use of public moneys. There is therefore an increasing need for the legal aid system to be able to demonstrate that it is efficiently managed and is deploying the techniques of modern management that are appropriate to the running of a public agency of this importance and magnitude. In particular, it will no doubt become increasingly important for the system to be able to effectively utilize modern information technology both in the service-delivery systems and in the generation of statistical information that will facilitate internal monitoring, strategic planning, and external accountability.

The need for increased cost-effectiveness does not arise exclusively, however, as a response to the exigencies of fiscal restraint. A more cost-effective legal aid system will be better able to maximize coverage, sustain high-quality service, and discharge the law-reform mandate we envisage for the system.

SERVICE-DELIVERY MODELS

  • The legal aid system shall be flexible, innovative, and experimental with respect to service delivery in order to maximize its ability to meet legal needs effectively and efficiently.

In our discussion of delivery-model issues, we have described a broad range of methods of providing legal aid services of various kinds. If a legal aid system aspires to provide a broad range of services while surviving within the fiscal environment of a budget cap, it will be necessary to adopt an innovative approach with respect to the use of a mix of delivery-models. As experience within Ontario with the use of delivery-models other than judicare is rather limited, especially in the contexts of criminal and family law, it will be necessary for an experimental approach to be taken. If significant change is to occur, and we believe that it should, the legal aid system will require sufficient resources to develop, implement, and monitor service-delivery strategies which attempt to maximize quality and coverage and, at the same time, to drive any inefficiencies out of the system.

LAW REFORM

  • The legal aid system shall undertake ongoing research and develop strategies to implement law and procedures which encourage access to justice and an efficient, integrated justice system.

One feature of the approach taken in this report has been to try to understand the legal aid system as a component of the larger justice system that both affects and is affected by the latter. The legal aid system has a unique perspective and, in a capped funding system, an economic incentive to take a serious interest in the modernization and simplification of the administration of justice by acting as an agent of change with respect to such matters. Promotion of reform of the law and practice by the legal aid system will repay dividends not only to the direct clients of the legal aid system, but to the broader public as well. It is therefore important, in our view, that the legal aid system develop the capacity to act as an instigator of this type of reform. In order to carry out a mandate to be innovative and experimental with respect to service-delivery issues, it is obviously important for the legal aid system to develop a research and policy capacity that will facilitate innovation and experimentation of this kind. Accordingly, we envisage that the legal aid system should have a strong research and policy capacity and that a significant portion of its budget would be devoted to research-and-development matters.

DIVERSE NEEDS

  • The services of the legal aid system shall be responsive to persons with diverse needs, including ethnic, racial, cultural, and linguistic minorities; persons with disabilities; Aboriginal communities; women; children; youth; and the elderly.

One of the strong features of the existing legal aid system in Ontario is that it strives to implement an ambition to carry out a commitment of this kind. Thus, specialty clinics have been developed to serve particular communities with diverse needs. It is nonetheless our view that these efforts should be redoubled. The report of the Commission on Systemic Racism in the Ontario Criminal Justice System, the research work done for this Review on issues relating to Aboriginal needs for legal aid services and many of the submissions made to the Review both in writing and at our public hearings served to reinforce the view that further efforts in this direction should be undertaken by the legal aid system.

GOVERNANCE

  • The legal aid system's governance structure must be one that will attract public credibility and legitimacy and will have the capacity to effectively discharge its mandate in the public interest.

The provision of high-quality legal aid services across a broad range of service areas is an issue of considerable public importance. The functioning of the legal aid system is highly visible both within government circles and to the public at large. It absorbs considerable public resources and is an important contributor to the proper functioning of the administration of justice within the province. It is therefore of vital importance to the proper functioning of the system that its governance be widely viewed within government circles, within the public at large, and, of course, within the legal profession as a credible and legitimate authority. As well, the governance structure must have, in fact, the requisite legal and managerial skills and knowledge of social conditions to enable it to effectively discharge its mandate in the public interest.

COMMITMENTS OF GOVERNMENT

As we have indicated, we believe that the commitments of the legal aid system must be matched by a set of commitments from the government of the province of Ontario. More particularly, we envisage that the commitments to be given by the province are those set out below.

INDEPENDENCE

  • The government shall commit itself to the independence of the legal aid system from government.

In the overwhelming majority of legal disputes involving legally aided services, the government is the opposing party. In criminal and quasi-criminal law, the government appears as prosecutor. In many "poverty law" cases, either the provincial or the federal government appears as the agency against whom relief is sought. In immigration and refugee cases, the government is the party in opposition. In many family law cases, the government may be seeking to intervene in the circumstances of a particular family setting or may be, at least, an interested party. In order for there to be a perception of fairness on the part of legal aid recipients, it is vital that the legal aid system be in fact, and be seen to be, independent with respect to its policy-setting and decision-making functions concerning the representation of clients. Accordingly, we believe it to be of critical importance that the government continue to publicly commit itself to this view of its relationship with the legal aid system.

FUNDING

  • The government shall ensure adequate, multiyear, stable funding to enable the legal aid system to carry out its responsibilities.

The fiscal crisis of the last few years demonstrates the desirability of a multiyear funding commitment for a program such as the legal aid system. With respect to many of the services provided by the Plan, the commitment to provide the service is made at the beginning of a matter, say, the laying of charges in a criminal case, but the completion of the service may well take several years. For this and other reasons, the budget of the legal aid system is difficult to manipulate on a short-term basis.

Accordingly, it would be highly desirable for the government to commit itself to multiyear budgets for legal aid, as it has done under the 1994 Memorandum of Understanding. This is especially desirable, as we have suggested, if the legal aid system is to become more innovative and experimental with its mix of service-delivery-models. If the legal aid system is to be able to invest in change with a view to building, over time, a system which is both highly efficient and highly effective, it must be able to have confidence that the innovation will have a shelf life beyond the limits of a single budgetary year.

Further, as we have indicated, the legal aid system is in some sense hostage to changes in other parts of the legal system. Important reform of some aspect of the administration of justice in family law or criminal law, for example, may create a very large and, perhaps, temporary increase in the demand for legal aid services. The current MOU between the Law Society and the government admits of the possibility of further budgetary allocations in the event of such shocks to the system, and a capacity for flexibility of this kind would also be a desirable feature of future fiscal understandings between the legal aid system and the government of Ontario.

SYSTEMIC REFORM

  • The government shall commit itself to ongoing scrutiny and reform of those features of the underlying justice system that constitute major determinants of legal aid needs.

As we have indicated above, one of the important roles we envisage for the legal aid system in the administration of justice is to act as an agent of change for the system. For its part, the government must commit itself to engage in appropriate reform of the underlying justice system. Although the particular interest of the legal aid system in reform of this kind is to generate further efficiencies in its work, the result of such reform efforts, of course, is to increase the efficiency of the justice system and, therefore, access to justice for all Ontarians. This is a worthy objective for the government of a province, and one which should form a part, we suggest, of the government's commitment to the legal aid system and to the people of Ontario.

In subsequent chapters of this part of this report, we attempt to work out the implications of these commitments or understandings with respect to service-delivery in various substantive areas of the law, with respect to funding and financial arrangements, and with respect to the governance of the legal aid system.

RECOMMENDATIONS

The legal aid system and the province of Ontario should manifest their renewed commitment to legal aid by formally exchanging and recording in the Legal Aid Act the following set of understandings:

(a) A Shared View of the Fundamental Purpose of Legal Aid

Access to Justice

  • The fundamental objective of the legal aid system is to promote equal access to justice by identifying and meeting the diverse legal needs of qualifying individuals and communities.

(b) Commitments of the Legal Aid System

A Needs Based System

  • The legal aid system shall identify and assess the needs of those who are unable to afford legal services and seek to meet those needs appropriately.

Quality of Service

  • The legal aid system shall be responsible for ensuring that the legal services it provides are of consistently high quality across the province.

Priority Setting

  • The legal aid system shall set priorities for service delivery in order to target available resources to the most appropriate cases.

Cost Effectiveness and Accountability

  • The legal aid system shall be responsible for assuring the public that legal services are being provided in a cost-effective manner and that effective use is being made of modern information-technology and management techniques.

Service-Delivery Models

  • The legal aid system shall be flexible, innovative, and experimental with respect to service delivery in order to maximize its ability to meet legal needs effectively and efficiently.

Law Reform

  • The legal aid system shall undertake ongoing research and develop strategies to implement law and procedures which encourage access to justice and an efficient, integrated justice system.

Diverse Needs

  • The services of the legal aid system shall be responsive to persons with diverse needs, including ethnic, racial, cultural, and linguistic minorities, persons with disabilities; Aboriginal communities; women; children; youth; and the elderly.

Governance

  • The legal aid system's governance structure must be one that will attract public credibility and legitimacy and will have the capacity to effectively discharge its mandate in the public interest.

(c) Commitments of Government

Independence

  • The government shall commit itself to the independence of the legal aid system from the government.

Funding

  • The government shall ensure adequate, multiyear, stable funding to enable the legal aid system to carry out its responsibilities.

Systemic Reform

  • The government shall commit itself to ongoing scrutiny and reform of those features of the underlying justice system that constitute major determinants of legal aid needs.